Kyle Kernan v. Beverly J. Kernan Nabors

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 25, 2015 Session
KYLE KERNAN V. BEVERLY J. KERNAN NABORS, ET AL.
Appeal from the Circuit Court for Knox County
No. 79745 Bill Swann, Judge
No. E2014-01679-COA-R3-CV-FILED-FEBRUARY 1, 2016
Post-divorce, a guardian was appointed for two minor children while their mother
received treatment for substance abuse. The guardian, the half-brother of the minors,
sought child support from both parents. The guardian alleges, inter alia, the trial court
abused its discretion by adjusting for tax deductions before calculating the mother‟s gross
income for child support due and by allowing her credit for support in kind and purchases
of necessities. We affirm the trial court‟s findings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II., J., joined.
W. Andrew Fox, Knoxville, Tennessee, for the appellant, Kyle Wayne Kernan, Jr.
Judith A. DePrisco, Knoxville, Tennessee, for the appellee, Beverly J. Kernan Nabors.
OPINION
I. BACKGROUND
Beverly Kernan Nabors (“Mother”) and Jack Elliott Nabors (“Father”) had one
child born during the course of their marriage, Amber.1 Mother and Father divorced in
Knox County, Tennessee, on August 21, 1998, and custody of Amber was awarded to
1
Amber, born March 24, 1995, is now twenty years old.
Mother. Father was ordered to pay child support. A second child, Jackie, was born after
the divorce on December 17, 1999. After parentage was established, Father was ordered
to pay support for the second daughter. In the years following the parents‟ divorce, it
appears Father rarely met his support obligations.
Eventually, Mother‟s sister and brother-in-law, Greg Lyons, allowed Mother and
her two daughters to stay in a residence they owned in California. Mother‟s adult son,
Kyle Kernan (“Son”), eventually joined them. At some point, Mother became addicted to
pain medication. The record contains evidence Mother also has problems with
alcoholism. In October 2008, Mother was hospitalized for two weeks and later admitted
to a rehabilitation clinic for a sober living environment. The daughters were left without
a legal custodian.2 It appears family members agreed to allow Son, Amber, and Jackie to
remain in the condominium with Son as the supervising adult. Son applied for and was
granted guardianship of his half-sisters by the State of California in December 2008.
Members of Mother‟s family financially supported this arrangement with money from a
family trust.
Over the next two and one half years, Mother resumed visitation with her
daughters gradually. She regained full custody of her daughters on June 26, 2012. Son‟s
guardianship was terminated on July 6, 2012.
Based on Mother‟s testimony, she initially was granted Sunday visitation with the
children beginning January 2009. In June 2009, her visitation was extended to every
other weekend. As of November 1, 2009, Mother had visitation with the children every
weekend. Mother eventually located to San Ramon, California, the home of the children,
on or about July 1, 2011, because the state court would not allow her to relocate the
children to San Jose, California, where she lived for her job. By mid- 2011, Mother had
the girls every Tuesday and Thursday, from the close of school until 9:00 p.m. On each
Friday, immediately after school, Mother had visitation with the children until 9:00 p.m.
on the following Sunday evening. During the weekends, Mother took the girls to
extracurricular activities. Further, she provided meals for her daughters whenever they
were with her, usually on Tuesday, Thursday, Friday, Saturday, and Sunday. Mother
paid health insurance for her daughters at $325.74 per month and, with the exception of
one disputed medical charge, she paid uncovered medical costs for the children.
Additionally, Mother provided school supplies, clothing, fees for SAT and ACT tests,
funds for extracurricular activities, and took the children to medical appointments. Upon
moving to San Ramon in 2011, Mother noted she took the children to school every day,
packed their lunches, and attended school events.
On April 3, 2012, Son, while still guardian, was allowed to intervene to seek child
support from both natural parents in the state with original jurisdiction, Tennessee. An
2
During this time, Father was incarcerated in Tennessee for manslaughter.
-2-
order entered April 5, 2012, established Father owed an arrearage to Mother in the
amount of $29,747.78, which could be adjusted upon proof of additional payments, and
required repayment in the amount of $40 per month.3 Mother was ordered to pay to Son
current support at the rate of $914 per month. The issue of arrearage was reserved.
Father was ordered to pay support to Son in the amount of $498 per month. The findings
and recommendations were confirmed on April 18, 2012.
On October 11, 2012, the trial court entered an order terminating Mother‟s current
child support obligation to Son ($914) as of June 26, 2012, because Mother had resumed
full time custody of her children. Hearings were held before the magistrate to establish
the amount, if any, of arrearage owed by Mother to Son. With respect to her income for
2008 through 2012, Mother testified her income consisted of a base salary and sales
commissions through June 2011, at which time she changed positions within her
employer to relocate closer to her daughters. According to Mother, based on federal
income tax returns and W-2 forms, her wages for the relevant years were: 2008 -
$34,886; 2009 - $56,393; and 2010 - $83,692. Mother related her employer did not
withhold federal income taxes, but did deduct California state income tax, FICA, and
Medicare from her gross income. The employer did not reimburse her for various
expenses incurred through her work, including fuel, mileage, and cell phone, although a
monthly $300 vehicle allowance was included.
The magistrate observed, although many kinds of deductions are permitted by the
IRS, not all of such deductions are appropriately considered for purposes of child
support. Going year by year, beginning with 2008, the magistrate determined deductions
not appropriate for child support adjustment included medical and dental expenses,
income tax paid to the State of California, and unsupported business travel deductions.
Accordingly, the magistrate increased the amount of adjusted gross income on Mother‟s
tax return by adding back in state income tax, medical and dental costs, and one-half of
the business travel expenses claimed by her on the 2008 federal income tax form, finally
determining, for child support purposes, Mother had gross annual income in 2008 in the
amount of $32,000. A child support worksheet was created, which contained no credit
for visitation by either parent and resulted in Mother being responsible for child support
in the amount of $719 per month, after being given credit for health insurance in the
monthly amount of $325.74 for the months of October, November and December 2008.
Father was responsible for $492 per month.
For 2009, the magistrate found Mother‟s total income was $61,193. Because
Mother lacked supporting documentation for work expenses claimed in the 2009 1040
form, the magistrate permitted only one-half of the deductions claimed for business travel
and disallowed deduction of other business expenses, which yielded an adjusted annual
gross income of $47,498.50, or $3,958.21 per month. Due to a dispute as to the precise
3
These arrearages are not part of this appeal.
-3-
number of overnight visits the children had with Mother in 2009, the magistrate “split the
difference” between the numbers put forth by Son and Mother, giving Mother credit for
110 overnight visits and none for Father. After additional credit for the cost of health
insurance for the children, Mother‟s child support obligation for 2009 was determined to
be $792 per month and $405 per month for Father.
For 2010, the magistrate determined Mother‟s gross wages were $83,692. The
magistrate permitted one-half of the claimed business travel deduction noted on Mother‟s
federal tax return, or $11,453.50, producing an adjusted gross income for child support
purposes of $72,238.50, or $6,019.88 per month. Mother was given credit for 110
overnight visits with the children and $340 per month for health insurance; Father was
given credit for 14 overnight visits with the children. The resulting child support
obligation for the parents was $1,006 for Mother and $309 for the Father.
Because Mother had not yet filed her 2011 tax return, no deductions were
permitted to offset her child support obligation. Support was calculated based on her
$105,330.78 gross income, with Mother being given credit for 110 overnight visits with
the children and a monthly insurance cost of $343.92. Father‟s obligation to Son was
calculated at minimum wage, 14 overnight visits with the children. Mother‟s support
obligation for 2011 was determined to be $1302; Father‟s monthly obligation was $276.
Calculation of Mother‟s 2012 child support obligation was reserved, but Mother
was required to pay Son $500 per month to begin reducing any past due child support,
tentatively calculated at nearly $42,000. Father‟s arrearage was calculated to be $8,227.
Shortly after the findings, Father died in a motorcycle accident.
After Mother appealed the rulings of the magistrate regarding the business
deductions, she introduced evidence to the trial court corroborating the deductions
claimed on her 2009 and 2010 federal tax returns. The trial court agreed with Mother
“the tax filings are accepted facially . . . unless there is cross examination that establishes
that the business expenses asserted are excessive and really are living expenses.”
Before the trial court, Mother asserted her income for 2009, for child support
purposes, should have been $29,004 versus the magistrate‟s finding of $47,498.50, and
her 2010 income, rather than the $72,238.50 found by the magistrate, should have been
$41,540. Mother also contended her 2011 income was $69,300, rather than the
magistrate‟s finding of $105,330.78.
The trial court ruled the magistrate should accept one hundred percent of the
deductions asserted by Mother, absent cross examination establishing such to be
inappropriate. The case was remanded to the magistrate to determine child support where
Mother‟s income for 2009 was $29,004 and $41,540 in 2010. No findings were made as
-4-
to Mother‟s child support obligation for 2011, and Mother was required to file her federal
taxes for that year so support could be calculated.
On remand, the magistrate heard argument and received proof concerning credits
against Mother‟s support obligation and Son‟s request for attorney fees in the amount of
$22,265.50. Mother introduced into evidence various e-mail communications from Son,
directing her to pay for various school activities and trips. Following attorney arguments
regarding credit for Mother‟s voluntary payment of expenses for the children, the
magistrate indicated she would be inclined to give Mother credit for expenses paid on
behalf of the children at Son‟s request.
According to Mother‟s proof, in 2009, she spent a total of $387.89 on items for the
children, which included clothing, shoes, and personal items; $8,541.46 in 2010; $7,680
in 2011; and similar expenses for 2012. The magistrate concluded Mother‟s support
obligation for 2009 was $531 per month and $714 for 2010. Mother‟s 2011 income for
child support purposes was found to be $69,300, or a monthly gross income of $5,775.
She was credited with 110 overnight visits with the children. Father was credited with 14
overnight visits. Mother‟s monthly support obligation for 2011 was calculated to be
$986; Father‟s obligation was $326.
At the final hearing before the magistrate, the magistrate found Mother had not
requested and was not entitled to any credit against her support obligation for 2008.
From January 2009 until the time Mother moved to San Ramon, Mother provided
clothing and paid other expenses. Accordingly, the magistrate concluded Mother would
be entitled to a one-third deduction for each month, beginning January 2009 through July
1, 2011. From July 2011 through June 26, 2012, when custody of the children returned to
Mother, the magistrate found Mother was entitled to a fifty percent set off from her
monthly support obligation. As of the time of the magistrate‟s report, Mother‟s
arrearages were determined to be $31,435. The trial court confirmed the findings and
recommendations on July 25, 2014.
Mother filed a motion under Rule 59 seeking to correct the findings and
recommendations to include her child support obligation from January through June
2012. At that time, Mother argued her total support obligation for all relevant time
periods was $19,603.44, and requested she be given credit for payments of $12,366. On
August 26, 2014, the trial court determined Mother‟s arrearage as of July 23, 2014 was
$7,237. Mother was ordered to continue paying the arrearage at $500 per month. The
court held each party was responsible for bearing their own attorney fees. Son thereafter
filed a timely notice of appeal.
-5-
II. ISSUES
The issues raised on appeal are as follows:
A. Did the trial court abuse its discretion or misapply the
law when calculating gross income for child support purposes
by adjusting Mother‟s income based on tax deductions, which
had the effect of lowering Mother‟s income.
B. Does the evidence preponderate against the finding
Mother was entitled to adjustments in child support due to the
time spent with the children while Son had physical custody.
C. Did the trial court abuse its discretion in finding a
deviation from the child support guidelines was warranted.
D. Did the trial court abuse its discretion in finding a
setoff against Mother‟s child support obligation under the
necessaries doctrine was warranted in this case.
E. Did the trial court commit error by considering all
child support issues on July 23, 2014.
F. Did the trial court abuse its discretion when it declined
to award attorney fees to Son.
III. STANDARD OF REVIEW
An appellate court‟s review of a trial court‟s findings of fact is de novo upon the
record of the trial court, accompanied by a presumption of correctness of the findings,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); see
Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000). We review a trial court‟s
conclusions of law de novo, with no presumption of correctness. Whaley v. Perkins, 197
S.W.3d 665, 670 (Tenn. 2006).
When it comes to setting child support, trial courts have discretion to determine
the amount within the confines of the child support guidelines promulgated by the
Tennessee Department of Human Services. Hommerding v. Hommerding, No. M2008-
00672-COA-R3-CV, 2009 WL 1684681, at *3 (Tenn. Ct. App. June 15, 2009); see Tenn.
Code Ann. § 36-5-101(e)(2) (courts shall apply child support guidelines as rebuttable
presumption when setting child support). When an appellate court reviews the child
support a trial court has set, we must consider “(1) whether the decision has a sufficient
evidentiary foundation, (2) whether the court correctly identified and properly applied the
-6-
appropriate legal principles, and (3) whether the decision is within the range of
acceptable alternatives.” State ex rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 248 (Tenn.
Ct. App. 2000).
To the extent the trial court exercises its discretion to set child support, we review
such decisions pursuant to the deferential “abuse of discretion” standard. Richardson v.
Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2006). “A trial court will be found to have
„abused its discretion‟ when it applies an incorrect legal standard, reaches a decision that
is illogical, bases its decision on a clearly erroneous assessment of the evidence, or
employs reasoning that causes an injustice to the complaining party.” Id.
IV. DISCUSSION
A., C. & D.
Son argues the trial court allowed Mother to receive a windfall while someone else
paid the costs of her children‟s housing, food, and transportation. He contends the court
also erred by providing categorical offsets against child support for purchases by Mother,
rather than requiring evidence. According to Son, the court did not make the proper
findings to justify a deviation from the support obligation. He claims the deductions
lowered Mother‟s gross income in 2008 from $39,572 to $32,000 (-$7,572); in 2009 from
$61,193 to $29,004 (-$32,189); in 2010 from $83,692 to $41,540 (-$42,152); and in 2011
from $105,330 to $69,300 (-$36,030).
As noted previously, the setting of child support is a discretionary matter. See
Kaatrude, 21 S.W.3d at 248. That discretion is controlled by the child support
guidelines. See Smith v. Darmohray, No. M2003-00236-COA-R3-JV, 2004 WL 904095,
at * 4 (Tenn. Ct. App. Apr. 27, 2004) (citing Butler v. Butler, 680 S.W.2d 467 (Tenn. Ct.
App. 1984)). The trial court is required to apply the child support guidelines as a
rebuttable presumption. Tenn. Code Ann. §36-5-101(e)(1)(A); Tenn. Comp. R. & Regs.
1240-02-04-.07(1)(a). However, the guidelines provide a court discretion to deviate in
method or amount from the presumptive child support so long as the tribunal explains the
basis for its deviation. Tenn. Comp. R. & Regs. 1240-02-04-.07(1)(b). Pursuant to the
guidelines:
When ordering a deviation from the presumptive amount of
child support established by the Guidelines, the tribunal‟s
order shall contain written findings of fact stating:
1. The reasons for the change or deviation from the
presumptive amount of child support that would have been
paid pursuant to the Guidelines; and
-7-
2. The amount of child support that would have been
required under the Guidelines if the presumptive amount had
not been rebutted; and
3. How, in its determination,
(i) Application of the Guidelines would be unjust or
inappropriate in the particular case before the tribunal; and
(ii) The best interests of the child for whom support is being
determined will be served by deviation from the presumptive
guideline amount.
Tenn. Comp. R. & Regs. 1240-02-04-.07(1)(c). As noted in State ex rel. Irwin v.
Mabalot, No. M2004-00614-COA-R3-CV, 2005 WL 3416293 (Tenn. Ct. App. Dec. 13,
2005), “[t]he trial court is authorized to deviate from the guidelines in individual cases
where their application would be unjust or inappropriate „in order to provide for the best
interest of the child or children or the equity between the parties.‟” Id. at *3 (citing Tenn.
Code Ann. § 36-5-101(e)(1)(A)).
The applicable definition of gross income as provided in the child support
guidelines is as follows:
Gross income of each parent shall be determined in the
process of setting the presumptive child support order and
shall include all income from any source (before deductions
for taxes and other deductions such as credits for other
qualified children) whether earned or unearned, and includes,
but is not limited to, the following:
(i) Wages;
(ii) Salaries;
(iii) Commissions, fees, and tips;
(iv) Income from self-employment;
(v) Bonuses; . . . .
See Tenn. Comp. R. & Regs., ch. 1240-02-04-.04. Son contends the court exceeded its
authority by deviating from the guidelines to allow deductions of business travel
expenses from Mother‟s gross income before calculating the amount of child support to
-8-
award. As we considered in Jesse v. Jesse, No. M2012-01246-COA-R3-CV, 2013 WL
5970486 (Tenn. Ct. App. Nov. 7, 2013), Son asserts “the guidelines do not explicitly
identify work travel expenses as a reason to deviate downwards and . . . the court
therefore exceeded its authority in deducting these expenses from the . . . gross income[
].” Id. at *4. As we noted in Jesse, however, “the guidelines are meant to provide
guidance to the courts, not set specific limitations:
Deviation from the Guidelines may be appropriate for reasons
in addition to those previously established in 1240-2-4-.01-
.06 when the tribunal finds it is in the best interest of the child
....
Jesse, 2013 WL 5970486, at *4-5 (citing Tenn. Comp. R. & Regs. 1240-02-04-.07(2)).
Under the facts of this case, the trial court explained its reason for deviating from
the presumptive guideline amount in a memorandum opinion incorporated by reference.
In that opinion, the court stated as follows:
The Court cannot find that the intervenor himself has borne
any child support expenses. He need not show that under the
law. Nevertheless, that does bear in considerations of equity,
which the Court will address below. The Court remands to
the Referee (or as the case may be directs counsel to prepare
an appropriate order) for a hearing in which mother‟s income
for child support purposes for 2009 is found to be
$2[9],004.00 and for 2010, $41,540.00. The Court credits her
testimony and the exhibits today. The Court is unable to
make findings of fact as to 2011. Accordingly, the mother
shall file her 2011 taxes; that and the previous findings are
remanded to the Referee for findings and recommendations as
to her income for child support purposes for 2011. The
Magistrate is directed to give full consideration to what this
Judge has done touching upon 2009 and 2010, as she makes
her finding of fact. It would appear by way of dicta, and this
may save the parties a great deal of expense and heartache,
that the mother‟s income for child support purposes for 2011
will be very closely in the neighborhood of $69,300.00. The
Court will not make that as a finding of fact today. The Court
sincerely hopes there will not be further litigation as to 2011.
The foregoing gives full credit to the filings of Beverly
Nabors touching upon her 1040 Returns for the years 2009
and 2010. I will indicate, by way of dicta, that this does not
-9-
appear to be an attorney fee case for either side. Each side
shall bear their own attorney fees.
Is this a case for deviation from the child support
guidelines? The Court finds that it should. The mother has
borne in kind expenses throughout, and as noted, Mr.
Kernan cannot be found today to have borne personally the
child support expenses. Accordingly, any award of child
support flowing from the mother will be a windfall to Mr.
Kernan, which does not sound favorably in equity. We
would also note, in terms of equity, that this is a mother who
has received through the decades virtually no support from
the birth father, who is recently deceased. She is entitled to
the compassion of the Court.
(Emphasis added.). On remand, the magistrate used the income amounts provided by the
trial court and found “[a]s of January 29, 2013, the principal amount of Mother‟s total
arrearage before application of interest is $31,435. This is calculated by adding arrearage
amounts from the Findings and Recommendations of the January 29, 2013 hearing for
2008 ($2,157) and 2012 ($5,484); plus the arrearage amounts recounted above for 2009
($6,372), 2010 ($8,568), 2011 ($11,820); for a total of $34,401; and subtracting the
payments made by mother as of January 29, 2013 ($2,966).” The magistrate thereafter
found Mother was allowed a credit of one third of her monthly child support obligation
beginning January 2009 through the end of June 2011 and a credit of one half of her
monthly child support obligation beginning July 2011 through the end of June 2012.
Accordingly, the record before us reveals the trial court explained its reasons for
deviating from the presumptive guideline amounts. The findings and recommendations
of the magistrate provide us the amount of child support without the downward deviation.
The court determined the deviation served the purposes of “equity between the parties.”
See Mabalot, 2005 WL 3416293, at *3. Therefore, the evidence before us does not
preponderate against the trial court‟s findings. We conclude the court was authorized to
apply a downward deviation to the presumptive child support guidelines based on the
facts of the case and did not abuse its discretion in making deductions from Mother‟s
gross income before calculating the proper amount of child support to award.
We further find the trial court did not abuse its discretion in crediting Mother
against her child support obligation for having provided a significant amount of the basic
expenses outlined under the guidelines, especially as she was directed to do so by Son.
See In re Jacob H., No. M2013-0127-COA-R3-JV, 2014 WL 5481112 (Tenn. Ct. App.
Oct. 28, 2014) (holding the court allows credits under special circumstances where
equitable considerations warrant such an allowance). In In re Jacob H., this court
observed
- 10 -
[t]here are . . . two recognized exceptions which permit
crediting the obligor parent for non-conforming payments.
One is the “necessaries rule,” see Oliver v. Oczkowicz, No.
89-396-II, 1990 WL 64534, at *2 (Tenn. Ct. App. May 18,
1990); the other is the “equitable considerations rule.” See
Smith [v. Smith], 255 S.W.3d [77] at 78 [(Tenn. Ct. App.
2007)], and Simpson v. Simpson, No. E2005-01725-COA-R3-
CV, 2006 WL 1735134, at *5 (Tenn. Ct. App. June 26, 2006).
Under either exception, the court may credit the direct
payments toward support arrearages as long as there is proper
evidentiary support.
We first employed the “necessaries rule” for non-conforming
payments in Oliver v. Oczkowicz, in which case the obligor
father sought credit for a number of voluntary expenditures
for the child, including private school tuition, medical bills,
credit card charges, and a school uniform. Oliver, 1990 WL
64534, at *2. In considering whether the father was entitled
to a setoff against child support for these expenditures, we
notably stated:
[W]e think . . . a credit for voluntary payments made
on behalf of the children [should be allowed] only
where the payment is for the children‟s necessaries
which are not being supplied by the custodial parent.
This result is in line with what is apparently the
majority view, which disallows credits for payments
not made in accordance with the support order, and it
recognizes that equitable considerations may allow
credits under certain circumstances.
Id. (citations omitted).
Since Oliver, we have applied the “necessaries rule” under a
variety of fact patterns for non-conforming payments
including: (1) where the obligor, non-custodial parent seeks
credit for voluntary expenditures on the child‟s behalf, Moore
v. Youngquist, No. 01-A-01-9012-CH-00433, 1991 WL
57982, at *2 (Tenn. Ct. App. Apr. 19, 1991); (2) where the
obligor, non-custodial parent seeks credit for child support
payments made to the child, Brownyard v. Brownyard, No.
02A01-9803-CH-00063, 1999 WL 418352, at *15 (Tenn. Ct.
App. June 22, 1999); (3) where the obligor, non-custodial
- 11 -
parent seeks credit for expenditures when the child shares a
primary residence with or is cared for by that parent, Peychek
[v. Rutherford], [No. W2003-01805-COA-R3-JV,] 2004 WL
1269313, at *4-5 [(Tenn. Ct. App. June 8, 2004)]; and (4)
where the obligor, non-custodial parent seeks credit for direct
payments to the oblige, custodial parent, Mock v. Decker, No.
W2004-02587-COA-R3-JV, 2005 WL 3447682, at *3-4
(Tenn. Ct. App. Dec. 15, 2005). Under these factual
scenarios, we have consistently held that the non-custodial
parent may be given credit where the payments are shown to
be for “necessaries” that were not provided by the custodial
parent. See id. The types of “necessaries” which are usually
considered include: food, shelter, tuition, medical care, legal
services, and funeral expenses.4 Peychek, 2004 WL 1269313,
at *4.
The foregoing notwithstanding, we find the facts of this case
come under the equitable considerations exception, not the
necessaries rule, as was our determination in Simpson, 2006
WL 1735134, at *5. Accordingly, we focus our analysis on
the equitable considerations exception.
In Simpson, the child support order required the father to pay
weekly child support directly to the court. Id. at *1. The
mother filed a petition seeking a significant child support
arrearage plus interest on the basis that the father had failed to
pay support through the court clerk as required by the order.
Id. The father testified that the mother and he communicated
regularly and arranged “for the payment of support to be
agreed upon from time to time.” Id. at *5. The evidence also
showed that the father made payments to third parties “at the
direction of [the mother]” for the child‟s tuition, car
payments/insurance, and other expenses. Id. Following trial,
a judgment was entered against the father for an arrearage.
Id. at *2. In calculating the arrearage, the trial court credited
payments made by the father directly to the mother, but
excluded payments the father had made to third parties for the
4
“In order to maintain a successful claim for necessaries, [the claiming parent] „must prove: (1) that the
child needed the particular goods or services that were provided, (2) that [the non-claiming parent or
guardian] had a legal obligation to provide the goods or services, (3) that [the non-claiming parent or
guardian] failed to provide the goods or services, and (4) the actual cost of these goods or services.‟”
Peychek, 2004 WL 1269313, at *4 (quoting Hooper v. Moser, M2001-02702-COA-R3-CV, 2003 WL
22401283, at *3 (Tenn. Ct. App. Oct. 22, 2003)).
- 12 -
various expenses. Id. Father appealed claiming, in relevant
part, that the payments for expenses should also have been
credited to his support obligation as they were made pursuant
to the mother‟s express directives. Id. We agreed with the
father, finding he was entitled to credit on equitable grounds.
Id. at *5. As we explained:
We see no practical distinction between Father sending
child support payments directly to Mother, who in turn
uses that money to pay the child‟s car payment and/or
car insurance, and the situation here where Mother
instead directs Father to make those payments for her,
thereby eliminating the middle step. These payments
clearly would be child support if Mother directed
Father to pay the money directly into her checking
account and he did so. We do not believe these same
payments lose their character as child support simply
because Mother, instead of directing the payments to
go into her checking account, directed the payments to
go to third parties in payment of expenses incurred by
Mother for the child. The question is not whether
Father should be given credit for these payments
because they should be deemed for necessities under
the law. Rather, the key factual point is that Mother
specifically directed Father to make these payments
for her. It would be inequitable for Mother to
specifically direct Father to make these payments for
her on the child’s behalf, which Father did, and then
for Mother to turn around and claim they were gifts.
Id.
We concluded the preponderance of the evidence weighed
against the trial court‟s finding that the payments to third
parties were intended as gratuitous payments, not child
support payments. Id. As noted in the quote above, we also
reasoned that the issue was not limited by the “necessaries
rule,” rather, it was a question of equity where Mother was
“directing Father where to send the child support payments.”
Id.
In re Jacob H., 2014 WL 5481112, at *4-6.
- 13 -
In the instant case, the undisputed evidence reveals Son told the children to get
money from Mother for various expenses. Additionally, Son sent Mother e-mails
directing her to pay for various school activities and trips. The magistrate and the trial
judge determined an inequitable result would occur if Mother was not credited for the “in
kind expenses” she paid, with the trial court specifically observing it “cannot find that
[Son] himself has borne any child support expenses . . . [and] . . . that does bear in
considerations of equity.” We find no abuse of discretion.
B.
Son asserts the trial court over-calculated the amount of co-parenting days parents
spent with the children. According to Son, Mother exercised zero visitation during the
first 151 days of 2009. During the first five months of 2009, Mother only exercised
Sunday afternoon visitations. There is no evidence Mother had any overnight visitations
until June 2009, when she started overnight visitations every other weekend. Beginning
in June 2009, Mother visited at the rate of two days every two weeks. During the
remainder of 2009, Mother visited 30 days. Son states Mother received credit for 110
days of parenting time in 2009, when she should have received only 30.
Son notes there is no evidence Father exercised any custody as an actual caretaker
during 2010. Father testified he served as caretaker in Tennessee for seven days in 2011.
He exercised zero days in 2012.
According to Mother, the record supports the determination Son had ample
opportunity to contest the number of overnight visitation credited to both parents when
child support was calculated. He failed to do so. Mother asserts Son‟s counsel prepared
the order using 110 days visitation by Mother as part of the calculation of child support.
In our view, Son had sufficient opportunity to appeal the magistrate‟s finding as to
visitation to the trial court. The issue is raised for the first time here, and we find it is
time barred. The trial court‟s decision regarding calculation of child support by using a
specific number of days of visitation is affirmed.
E & F.
At an early stage, the trial court indicated this case did not appear to be one where
attorney fees should flow from either side to the other. In an order filed August 26, 2014,
the court held “[n]o attorney fee shall flow in either direction.” The trial court, as a
matter of equity, determined no attorney fees should be awarded. Given all the facts of
this case, we find no abuse of discretion in the trial court‟s ruling. Accordingly, the
denial of Son‟s request for attorney fees is affirmed. Further, the record does not support
the finding any error was committed at the hearing on July 23, 2014.
- 14 -
V. CONCLUSION
All findings and orders from the trial court are affirmed. Costs of this appeal are
assessed to the appellant, Kyle Kernan. This matter is remanded to the trial court for
such further proceedings as may be necessary.
_________________________________
JOHN W. McCLARTY, JUDGE
- 15 -